BIJU BAPU Vs. MUNNALAL

JUDGEMENT

(1.) 1. This appeal by the plaintiff arises out of a suit for ejectment filed by him against the defendant under the following circumstances: In Taluka Purada of which plaintiff is the superior proprietor is included the village of Bijepar alias Bijai Kutumb which comprises 3 mahals. The present suit relates to mahal 2. At the 30th year Settlement the plaintiff's ancestor was recorded as the'superior proprietor and the defendants' lessors' predecessor-in-interest as the inferior proprietor of the mouza. The inferior proprietary rights were conferred on Holu son of Baisakhu Goad, as admitted by plaintiff. On his death the right devolved on his son Pandu and after his death on his son Pusa. Pusa died on 17th October 1920. Thereupon mutation was effected in favour of plaintiff on the ground that he died without heirs and the malik adna (or inferior proprietary) right became merged in the malik ala (or superior proprietary) right of the plaintiff. It is, therefore, contended by the plaintiff that the inferior proprietary right having thus lapsed, the lease granted by Pandu to Balkisan Patel and Hira Patel as per terms of the lease-deed, dated 25th January 1886, could not operate, after the death of Pusa or at any rate enure beyond the lifetime of the lessees (both of them having died respectively in 1924 and 1897) and that the sub-lease granted by the said lessees to defendant must, therefore, determine with the determination of the lease on which it was granted. The present suit was, therefore, filed on 27th April 1926, and an alternative claim for arrears of thekajama has been joined with it.

(2.) THE defence was that the decision in the former Suit No. 30 of 1914 debarred the plaintiff from suing the defendant and that though plaintiff was offered the thekajama he improperly declined to accept it, in respect of the years 1332-1334 Faslis.

(3.) THE lower Court held that the lease of 1886 was a lease in perpetuity and under that lease all the interest of the inferior proprietor Pandu was conveyed by him to the lessees Balkisen and Hira. In short that the lease amounted to an out-and-out sale of the inferior proprietary right. In this view of the case the plaintiff's claim was dissmissed. Hence he has come up in appeal.